www.elsblog.org - Bringing Data and Methods to Our Legal Madness

01 March 2007

Thanks to everyone who has commented on my posts so far. The responses to my first post, on whether judges accurately report the facts, were extremely helpful. I think that Sara Benesh may have put her finger on one of the real challenges of doing this kind of work – deciding what facts should have been reported. In situations where the Supreme Court has made it clear that certain types of facts must be taken into account, whether by incorporating those facts explicitly into a legal test or standard or by doing so implicitly by relying on such facts (or their absence) repeatedly, my hypothesis would be that the trial and appellate courts do a pretty good job of accurately reporting them – as Sara seems to have found.

But my interest in this thorny question arises from a different context. In employment discrimination cases, courts often must decide whether to grant summary judgment. So they have to evaluate whether a reasonable jury could find for the plaintiff. Every case presents a different constellation of facts and much of what courts must do is to weigh the facts. Although the Supreme Court has provided a framework for this analysis (McDonnell-Douglas), in fact what courts do here is quite case-specific (and, as I’ve already suggested, quite unpredictable). Judges in these cases don’t report every fact or piece of evidence. They can’t. And presumably, the decision to omit a fact is based on a determination that the fact, or piece of evidence, is not material. So if a researcher were to go through the briefs and identify the facts mentioned by the lawyers but not the court, the researcher would still have to make a judgment whether the facts should have been mentioned.

So how to get around this problem? One possibility is to focus on dissents. In some cases, the dissents blow the whistle. In Malacara v. City of Madison, for example, Judge Williams in dissent lays out the plaintiff’s substantial evidence to support his claim of discrimination, evidence that the majority simply ignores. The problem is that such whistleblowing will point to only a fraction of the cases in which this problem arises, either because there is no dissent or because a draft dissent prompted discussion of the previously omitted facts. This latter situation may be interesting for other reasons – does the presence of certain judges and the increased threat of whistleblowing affect the way or which facts are described? This is a panel effect that I do not believe has been studied, but would be very difficult to observe, at least in the absence of judges’ papers.

There’s an additional facet to this problem that has to do with how the law develops, and that might provide some insight. My colleague Mark Rosen has coined that expression “rulifying” to describe the way that the Supreme Court reliance on facts can turn those facts into elements of a legal standard or rule. Putting these ideas together suggests an interesting possible empirical approach: is there less “whistleblowing” in areas of law that have relatively well-developed sets of facts courts are required to address versus areas of law that require judges simply to rely on their overall assessment of the evidence or facts – the totality of the circumstances?

"In the past, judges have often hired
applicants for judicial clerkships as early as the beginning of the
second year of law school, for positions commencing approximately two
years down the road. In the new hiring regime for federal judicial law
clerks, by contrast, judges are exhorted to follow a set of start dates
for considering and hiring applicants during the fall of the third year
of law school. Using the same general methodology as we employed in a
study of the market for federal judicial law clerks conducted in
1998-2000, we have broadly surveyed both federal appellate judges and
law students about their experiences of the new market for law clerks.
This Article analyzes our findings within the prevailing economic
framework for studying markets with tendencies toward early hiring - a
framework we both draw upon and modify in the course of our analysis.
Our data make clear that the movement of the clerkship market back to
the third year of law school is highly valued by judges, but we also
find that a strong majority of the judges responding to our surveys has
concluded that non-adherence to the specified start dates is very
substantial - a conclusion we are able to corroborate with specific
quantitative data from both judge and student surveys. The consistent
experience of a wide range of other markets suggests that such
non-adherence in the law clerk market will lead to either a reversion
to very early hiring or the use of a centralized matching system such
as that used for medical residencies. We suggest, however, potential
avenues by which the clerkship market could stabilize at something like
its present pattern of mixed adherence and non-adherence, thereby
avoiding the complete abandonment of the current system."